Assessing the Need for Guardianship and Conservatorship
Determining “Incapacity”: A Practical Guide
The aforementioned legal and medical definitions notwithstanding, the inquiry into whether an acquaintance, client, friend or loved one is “incapacitated” is often a troubling and difficult issue. A “checklist” provided by a legal treatise for use by attorneys may provide a general framework for determining whether a guardianship should be considered in other contexts:
Checklist: Circumstances that Indicate Need for Intervention
- Illness or Trauma. The alleged incapacitated person has suffered a serious illness or trauma and cannot manage financial and/or personal care needs as a result.
- Abuse. The alleged incapacitated person is suffering physical or financial abuse.
- Susceptibility to Fraud or Abuse. The alleged incapacitated person is being taken advantage of or is highly susceptible to fraud and abuse.
- Medical Treatment. The alleged incapacitated person needs medial treatment but lacks the ability to give informed consent and has no directive or irrationally refuses medical treatment.
- Living Trusts or Other Plans Abused. The alleged incapacitated person has a living trust but the trustee is either failing to care for him or has taken advantage of trust assets.
- Failed Durable Power of Attorney. The alleged incapacitated person has executed a Durable Power of Attorney, but the attorney-in-fact has failed to act or has taken advantage of the alleged incapacitated person.
- Estate and Tax Planning. Estate and tax planning is needed to provide estate protection, but the alleged incapacitated person lacks capacity to execute necessary documents or to take other planning steps.
- Asset Preservation and Long-Term Care. Asset preservation planning is necessary because the alleged incapacitated person is in or entering long-term care and protective planning must be done for the benefit of the spouse, who will continue to live at home. Because the alleged incapacitated person lacks capacity to execute necessary planning documents or take other planning steps, court approval of such steps may be necessary.
Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §L:3 at L-21.
In addition, the following assessment tools may provide guidance in the exploration of this area, and assist in the decision as to whether further evaluation is necessary.
1. Functional Assessment
A functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity, Thus, because the law requires differing standards of capacity for different tasks (such as making a will or deciding health issues), functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35.
2. Cognitive Assessment
A cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State, Short Portable Mental Status Questionnaire, and the Mental Status Questionnaire. See Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-36.
In the event that you suspect that an acquaintance, client, friend or loved one is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friend or medical doctor. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact Adult Protective Services.
Where you have concerns about a vulnerable, possibly incapacitated elder, you may also have concerns about the related issue is elder abuse, broadly defined as the infliction of harm on an older adult. American Psychological Association website, Aging Issues: Elder Abuse and Neglect: In Search of Solutions.
Signs Of Physical, Emotional Or Psychological Elder Abuse
An elderly person who is frail, dependent on others, and living in a vulnerable situation is a candidate for abuse.
Some signs of abuse to watch for include:
- Bruising, burns, fractures
- Injury incompatible with history or not properly cared for
- Malnutrition/dehydration without illness or related injury
- Inappropriate medication administration
- Threats, harassment, insults
- Refusal to allow travel, visits with friends, attendance at church; isolation
- Poor personal hygiene
- Brought to hospital/doctor by other than caregiver
- Delay between injury/illness and request for treatment
- Hospital/doctor “hopping”
- Similar injuries/incidents
- Lack of concern of caregiver
- Withdrawn, agitated, fearful behavior in the presence of caregiver
- Crisis, alcohol or drug abuse in family
Periodic visits of elderly clients by social workers, nurses and other professionals can be critical in the early detection of elder abuse.
Indicators Of Possible Financial Exploitation:
The following examples may be indicators that financial exploitation is occurring or has occurred:
- Inappropriate persons banking for the elder
- New joint bank accounts, or additional names on bank signature cards
- Bank activity that is inconsistent with the elder’s abilities (such as use of automated teller machine (ATM) by bedridden elder)
- Notices of unpaid rent/utilities, etc.
- Sudden changes to elder’s estate plan (will, POAs, etc.)
- Sudden isolation/estrangement between elder and elder’s family/friends
- Sudden change in elder’s attorney, stockbroker, doctor or other professional
- Elder appears reluctant to discuss matters alone, or third party “speaks for” the elder
The Basics: What is Elder Abuse?, National Center for Elder Abuse, elderabusecenter.org.; Financial Abuse, National Committee for the Prevention of Elder Abuse.
Elder Abuse: Risk Factors
The likelihood of becoming a victim of financial exploitation increases if the elder is:
- recently widowed (exploiters may read obituaries to target widows)
- na&iulm;ve or trusting and open with strangers
- physically dependent on a caregiver
- declining in physical or mental health
- severely physically disabled
- living alone (particularly in own home)
- without close friends or relatives willing or able to assist
- withdrawn, confused, or depressed
- lacking knowledge of own finances or lacking reputable assistance with financial matters
- providing financial support for their caregiver.
Undue Influence and Financial Exploitation, Matrix AdvoCare Network, Vol. 14, No. 2; Financial Exploitation: Family Self-Help Guide, AARP Legal Services Network, New Jersey Edition.
What To Do If You Suspect Elder Abuse
If you suspect that an elder may be the victim of abuse, there are a number of places you can report your concerns, including the following:
- Adult Protective Services
- Local police or county prosecutor
- Area Agency on Aging (county government section of phone book)
- New Jersey Attorney General (609)292-4925
- Eldercare Locator (nationwide referral service) (800)677-1116
- National Center on Elder Abuse (202)898-2586
- National Domestic Violence Hotline (800) 799-SAFE
For additional information regarding Guardianship and Conservatorship, call us at 908-232-7400 or click here to contact us online.